from the tough-slog dept

The latest news in the world of copyright-trolling porn companies is that one of the people that the porn world tried to shake down with a trolling attempt has hit back with a racketeering lawsuit, which she's trying to turn into a class action. The woman, Jennifer Barker, received a call from someone claiming to work for a law firm (though, in the lawsuit, Barker says she actually works for a third party) demanding a "settlement" payment to avoid being named in one of the lawsuits in Florida (the new favorite for copyright trolls due to some oddities in the law). The caller, like many copyright-trolling porn attempts, played up the fact that it would be embarrassing to be named in a lawsuit for downloading porn. Barker claims she never downloaded the porn and has no clue what BitTorrent is, and -- quite reasonably -- felt that she was being extorted.

From the lawsuit:

Ms. Hansen demanded that Ms. Barker pay money to settle the lawsuit or she would be identified publicly as having downloaded pornography and would be subject to hundreds of thousands of dollars as a judgment if the suit went forward because there were multiple downloads. Numerous individuals on the Internet report receiving a phone call from the same telephone number as that provided by Ms. Hansen to Ms. Barker with a demand that they pay money to settle a lawsuit against them.

Ms. Barker refused to pay any money because she did not know what BitTorrent was and had never downloaded any pornography from the Internet. On information and belief, many other members of the class have paid sums of money in settlement with the pornography purveyors even though they had never downloaded any pornography from the Internet, and certainly had never unlawfully downloaded any pornography from the Internet.

Subsequently, Ms. Hansen and others associated with her called Ms. Barker's place of employment and left messages on the voicemail to which several of Ms. Barker's co-workers also had access and continued to contact Ms. Barker on her personal telephone. Class members have been subjected to the same or similar treatment.

This is hardly the first attempt to use racketeering/RICO laws to counter copyright shakedowns, but to date, most have not been very effective. There is the ongoing lawsuit by Dmitriy Shirokov against US Copyright Group and its parent company Dunlap, Grubb & Weaver, but that was a really fact-specific case, involving the fact that the copyright holder (Uwe Boll) had failed to register the copyright in question in the US in a timely manner, leading to some specific legal questions.

There were also similar attempts to bring a class action racketeering case against the RIAA for its own practice of suing end users for allegedly making works available on file sharing networks. Those lawsuits flopped pretty badly, though.

Again, the case seems to allege some pretty specific facts that potentially could distinguish it from those other ones in the past, though it seems like a pretty massive longshot. The filing focuses on the use of the telephone to seek the money, claiming that it was "wire transmission in a scheme or artifice to attempt to fraudulently obtain money from another" under the law. But, that's actually a pretty high bar to meet, and the porn companies can and will argue that they weren't trying to "fraudulently" obtain money, but legitimately do so. I'd be surprised if the courts allowed this one to go very far.

Reader Comments

and that's where things should change. why should anyone pay anything to anyone on what amounts to nothing more than an accusation based on nothing other than an IP address? this and all similar cases are a shake down, a way for a company to at least try to get money from someone based on, not facts and evidence of wrong doing, but on fear of ridicule or public exposure over downloading porn. the companies concerned know people would rather pay than risk being a laughing stock. if that isn't extortion, it must surely be attempting to get money under false pretenses, isn't it?

Re: Re:

Some Teeth Perhaps?

Wonder if they have the "litigation privilege" in KY, where statements reasonably related to a lawsuit are privileged. Even if so, the claims of fraud might go beyond the bounds of the privilege, at least at the pleading stage.

And, when you have Randazza arguing that it should constitute negligence for a party to have an open wi-fi (although, NOT - because no personal injury or property damage) in recognition that the IP does not identify the downloader; and when you have Courts now understanding that IP addresses do not necessarily identify the perp; and you have professional trolls making the phone calls ... well guess what? The trolls are not going to have such an easy time getting away with saying that their representations that IP address = the perp were not fraudulent statements. Fraud also can lie where the person making the statement has no reasonable belief that their representations are true. And they can hardly reasonably believe the gal was the downloader in light of the above.

That's probably why they make phone calls rather than put it in writing - for denial purposes.

Re: Some Teeth Perhaps?

No they put these things in writing, and often the Judges know nothing about what is actually in the letters... because the case has already been dismissed without prejudice from the court. The court allows them to keep the list of Does and they keep sending letters, making calls, and recently making robocalls (even to Does who have lawyers so contacting them is a violation of the law).

When you are faced with a letter saying your going to be out $150,000 because of an allegation and no attorney will even talk to you for a few hundred less than the settlement request.
Then if you pay your own lawyer many of them just take their fee, and negotiate you a lower settlement price... because they can't be bothered to even look at if the case has merit.
If you try to explain to the troll you didn't do it, they get you to admit on the phone that maybe a roommate, relative, etc might have done it and tell you that the person who did do it as well as yourself owe them thousands of dollars.
If your a really good troll, you post the names of Does on your website linking them to the pornography title in question when you haven't filed a named case.
Because the biggest threat in the toychest is telling everyone you are connected to "stealing" porn with scandalous titles. I mean its a lawyer making the statement and people tend to think lawyers don't lie (which really is a pity as many of them are lying scum when they want to win).

Then there are the games being played with copyright registrations, getting newer registrations on works that already have a copyright because they recut them. (its a nono). Filing for a copyright 3 months after gathering IP addresses. Filing for a copyright years after the first public viewing, when even if someone infringed the damages are capped at 'actual' damages, but still talking about winning up to $150,000.

Then there are the press releases about "wins". I know of 2, both are from Randazza and both are misleading as shit.

$250,000 win in downloading case!!
- Except it was a settlement not a court finding, the $250,000 never has to be repaid in full and the monthly payments reduce the total amount as long as the defendant never misbehaves ever again.
$10,000 win in downloading case for negligence!
- Except it was a settlement again, you got $4.00 (IIRC) for contributory infringement and $10,000 for negligence. No one even knows if the Doe has to pay that full amount or not.

The deck is stacked against Does because everyone is lead to believe the IP address is like DNA and is never wrong. These firms are taking shortcuts with the law time and time again... look at what Evan Stone did, now imagine if they all were doing that.

The IP address identification is flawed, it was thrown out of German courts... and now its here in the US (and slowly working towards Canada because the US courts are starting to get a clue).

Re: Re: Some Teeth Perhaps?

Understood. My point was that I have seen plenty of these shakedown letters, and they never said *in writing* that they were going to expose them to embarrassment by outing their porn downloads, etc. That is why I think plaintiff may have pled sufficiently that a line was crossed in this matter. And trying to say they legitimately believed this gal was the downloader is not the excuse it was even last year.

As to: "Then if you pay your own lawyer many of them just take their fee, and negotiate you a lower settlement price... because they can't be bothered to even look at if the case has merit."

Disagree. It does not take much to look at the merits. Did you download "Far Cry?" -- "Um, I see it in my hard drive, but I didn't intentionally download it. Never heard of it." OR "No." -- either way, most folks don't want the hassle and the cost, so cough up the $2-3k to the trolls.

That's where it's really angrifying. Many lawyers want to help and fight these trolls, but they gotta eat too - can only work for free so much, and the client's don't have loads of cash laying around, and so the cost/benefit goes to paying those extortionate fucks off. And who learns a valuable lesson out of it? Nobody.

Re: Re: Re: Some Teeth Perhaps?

I've seen letters from a copyright troll saying if you dare to challenge the filing on the grounds of not being in the courts jurisdiction, they assure the target the victory will be pyrrhic. They make public statements about their methods and how their intention if you say I didn't do it, is to ask all of your visitors to your home, and go door to door in your neighborhood asking if they downloaded the porn on your connection, and thats just Randazza.

I've read threats about $150,000 awards for movies without US Copyrights, or defective copyrights.
The trolls do certainly lie in their letters and make threats.

There was an "anti-settlement" mill running, for a flat fee they would get you a "better" settlement. Better could mean $50 off.
I've seen a story where someone listened to the lawyer who told them to settle, and its come out the troll's case is falling apart. He's never actually sued a single person.

If someone tells the lawyer yeah I did it, get me a good price and cover my ass - I support that lawyer.
If someone hires a lawyer, says I didn't do this make it go away and the answer is to settle, that lawyer sucks.
A majority of trolls when faced with a competent lawyer who writes a letter pointing out how deficient the case is, will turn tail and run.

Their biggest fear is and continues to be someone forcing their expert onto the stand. The IP capture they do can be wrong, and the error rate is much higher than anyone knows. An expert in one of these cases had to admit a 30% error rate in just looking up location of Does, and said it could go higher.

I don't expect lawyers to work for free, or launch an all out counter lawsuit, but when you tell an innocent party to settle rather than send 1 letter to scare the crap outta the troll your a bad lawyer. Trolls hate people who have representation, and often leave them the hell alone if the representation is more than how little can we settle this for.

Government distraction tactics

Lmao, So many distraction tactics, next they will try to make all forms of porn illegal. I've got nothing to worry about because I use a VPN :P and I have the ability to pack up and disappear, just in case the crap hits the fan.

You all should implement that kind of plan, because any one of you could be next. All you need is a overpowered laptop,(at a discounted price) a VPN account, a monthly bus pass, and a backpack full of non-perishable supplies and electronic accessories, and also a good pair of shoes and a escape route planned out.

It's just that simple people. With the world we are living in today, you must have a backup plan, or perish.

Re: Praying for one of these

He was an IT security "expert" who had open wifi, and the porn allegation and having to admit his wifi was unsecured would have ruined his career. It was just easier to settle than to get a lawyer and try to fight, because people are aware over over 250,000 Does having been targeted and the actual named cases filed... I'm pretty sure is below 100.

Oy, paywall bob! You can't let this injustice stand now, can you? We know how you're an ardent supporter of John Steele and that you're an "independent producer" - surely you're not going to let this poke MORE holes in your arguments?